What is the difference between a contested and uncontested divorce?
A divorce is considered uncontested if both spouses agree to the divorce and mutually decide on the arrangements for their children, finances, and property after the marriage ends. In contrast, a divorce is contested when one spouse does not want the divorce, when there is disagreement about the grounds for the divorce, or when the parties cannot agree on the division of children, finances, or property. Contested divorces typically take longer and involve more court appearances in Supreme Court. In such cases, it is even more critical for each party to hire a lawyer to protect their interests.
How is an annulment different than a divorce?
Divorce and annulment are both legal methods to end a marriage, but they differ significantly in their purpose and effect. Divorce is the process by which a legally recognized marriage is terminated, acknowledging that the marriage was valid but has now ended. After a divorce, both parties return to a legal status of being single, and any agreements or rulings on issues like child custody, support, alimony, and division of property are handled as part of the process.
Annulment, however, goes a step further by legally erasing the marriage, as though it never existed in the first place. Unlike divorce, an annulled marriage is considered invalid from the beginning, meaning that in the eyes of the law, the marriage was never legitimate. Annulments are typically granted under specific circumstances, such as cases of fraud, coercion, incapacity to consent (due to age, mental state, or intoxication), or situations where one spouse was already married at the time (bigamy). Religious annulments, such as those granted by certain faiths like the Catholic Church, are different from legal annulments and have no legal bearing.
In both cases, whether a marriage ends through divorce or annulment, issues such as property division and child custody may still need to be resolved. However, the key distinction is that divorce ends a valid marriage, while an annulment essentially erases the existence of a marriage in the legal sense.
How long does the divorce process take?
The duration of the divorce process can differ from case to case and is influenced by various factors, such as the type of divorce, the individuals involved, the county where the papers are filed, the judge overseeing the case, and the state laws. In general, uncontested divorces—where both spouses mutually agree on the divorce and key issues like child custody, finances, and property division—typically take between 4 to 6 months, though this can vary. On the other hand, more complex cases can take anywhere from six months to two years. Disputes over custody and finances tend to prolong the process. If custody is contested, it can extend the timeline to a year or more, whereas disagreements solely over finances may result in a shorter duration. Contact our office for more information on how we could get you divorced in as quickly as 15 days.
Do I need to a lawyer to get a divorce?
It is highly recommended that individuals going through a divorce consult with a lawyer, as divorce law can be complex. Ensuring that each spouse’s rights are protected and that the legal process is followed correctly is crucial. In cases where the divorce is uncontested, and all financial and custody matters are settled, parties can use the Uncontested Divorce Forms Packet provided by the courts. However, even in uncontested cases, seeking legal advice is strongly advised.
How much does a divorce cost in New York?
Navigating the complexities of divorce can be overwhelming, both emotionally and financially. A common question many New Yorkers have when considering divorce is, “How much does a divorce cost in New York?” The cost can vary greatly depending on several key factors, which are:
(i) case intricacy; (ii) areas of dispute; (iii) court filing fees; (iv) legal representation costs; (v) mediation and alternate dispute resolution; (vi) additional legal costs. It is also contingent on both the cooperation of the other side and your objectives. A great way to keep the costs down for your divorce are to be organized, educate yourself, limit communication costs, be honest, and choose an experienced attorney.
I have an attorney, but I think I want to hire someone else. Can I do this?
Absolutely! If you are dissatisfied with your current legal representation for any reason, reach out to us for a free consultation. With over 20 years of experience serving a diverse range of clients, many of whom have come to us after previously retaining another lawyer, we are ready to assist.
If you choose to switch to Shim Law Group, P.C., we will handle the process by filing a Consent to Change Attorney and a Notice of Appearance with the court, and we will request your former attorney to provide your complete case file. Changing attorneys is a straightforward process, so don’t hesitate to take action if you are not satisfied with your current representation!
What are the “grounds” for divorce?
In New York, there are five fault-based grounds for divorce, some of which are: cruel and inhuman treatment, adultery, abandonment for one year or more, and imprisonment for three or more years. In addition to these fault-based grounds, you may also apply for a “no-fault” divorce, which is based on having lived apart under a separation agreement or court decree for more than one year. Regardless of the grounds for divorce, consulting with an attorney is highly beneficial in navigating the complexities of separation and divorce agreements, ensuring your rights are protected, and helping you reach a fair resolution.
Where do I file for divorce?
In New York, divorce cases are filed in Supreme Court, not Family Court. You must file for divorce in the county where either you or your spouse currently reside.
Do both spouses have to agree to the divorce in order to get divorced?
Even if your spouse does not agree to the divorce, you can still proceed with the process. However, New York State law requires that the defendant (the spouse who did not initiate the divorce) be personally served with divorce papers. Therefore, you must know your spouse’s location to ensure the papers are hand-delivered. Once they have been served, you can move forward with the divorce, regardless of whether or not your spouse consents. With the right information, Shim Law Group, P.C., can provide you with the tools to assist you in finding your spouse.
What if I don’t know where my spouse is located?
You must know your spouse’s current location in order to serve them with the Summons and Verified Complaint for Divorce. If you are unable to find them, it may be necessary to hire a private investigator. In such situations, working with an experienced divorce attorney can be especially helpful.
Once your spouse (now the defendant) has been located and served with the Summons and Complaint, you will need to wait for their response and their decision to hire an attorney, if they choose to do so. If they fail to respond within the required time frame, you and your attorney can file for a default judgment, meaning the divorce will be granted automatically due to the defendant’s failure to respond.
For further guidance, reach out to an attorney from Shim Law Group, P.C. to discuss your case.
I was served with a summons with notice. What do I do?
You have 20 days to respond to a Summons and Notice for Divorce. While it is not mandatory to hire an attorney for all divorces, it is highly advisable to at least consult with a local lawyer who specializes in divorce. This consultation will help you better understand the legal documents you’ve been served with and the potential implications.
If you choose to retain us as an attorney, Shim Law Group, P.C. will handle the filing of all necessary court documents, communicate with the opposing party’s counsel, and represent your interests throughout the divorce process. Having legal representation can help ensure your rights are protected and can provide guidance during this challenging time.
How does a judge decide custody?
When determining custody and visitation agreements, a judge considers several important factors, with the primary goal of ensuring that the arrangement serves the best interests of the child. The judge will assess each parent’s relationship with the child, the parent who has been primarily responsible for the child’s daily care, each parent’s overall parenting abilities, their living situations, and whether there is any history of abuse or neglect. Since every family’s situation is unique, the specifics of a child custody arrangement will vary greatly from case to case, depending on the family dynamics and the child’s needs.
How long does a parent have to pay child support for in New York?
In New York State, parents are legally obligated to provide financial support for their children until they reach the age of 21. This includes child support payments. However, there are exceptions to this rule. Parents are not required to pay child support if the child is married, is self-supporting, or is serving in the military. These exceptions recognize that under certain circumstances, a child is considered financially independent before turning 21.
How is child support awarded?
Child support is a financial obligation imposed on the non-custodial parent—the parent who does not have primary custody of the child or children. The non-custodial parent is typically required to pay a percentage of the combined parental income based on the number of children, following these guidelines:
- 17% for one child
- 25% for two children
- 29% for three children
- 31% for four children
- 35% for five or more children
In addition to basic child support payments, the non-custodial parent may also be responsible for contributing to a portion of the child’s healthcare costs, educational expenses, and possibly other child-related needs. These contributions are intended to ensure the child’s well-being and are based on the financial capacity of both parents.
How long do I have to pay alimony or spousal maintenance for in New York?
The duration of spousal support is ultimately determined by the judge, but as of January 2016, a new advisory schedule has been introduced to guide these decisions. While the court still has the discretion to consider special circumstances, this schedule serves as a “rule of thumb” for determining the length of spousal support based on the length of the marriage.
According to the new advisory schedule:
- For marriages lasting up to 15 years, maintenance should last between 15 to 30 percent of the length of the marriage.
- For marriages lasting 16 to 20 years, maintenance should last between 30 to 40 percent of the length of the marriage.
- For marriages lasting more than 20 years, maintenance should last between 35 to 50 percent of the length of the marriage.
Additionally, there is Pendente Lite, or temporary maintenance, which provides financial support to a dependent spouse during the divorce proceedings. These temporary payments are designed to assist the financially dependent spouse until the final spousal support decisions are made and end when the divorce is finalized.
Can I receive spousal support?
Spousal support, also known as alimony or maintenance, may be awarded to either spouse during a divorce, depending on several factors. These factors include the income of the non-dependent spouse, the length of the marriage, and other relevant considerations such as the financial needs of both parties. There are two types of maintenance that may be awarded:
- Temporary maintenance, which is granted during the divorce proceedings to help support a financially dependent spouse until a final decision is made.
- Post-divorce maintenance, which is awarded after the divorce is finalized and may be set for a specific duration based on the circumstances of the marriage.
Both types of maintenance can be granted to either the husband or wife, depending on the financial situation and the court’s evaluation of what is fair and appropriate.
How will equitable distribution affect my property?
In New York, all property acquired and income earned during a marriage is subject to equitable distribution upon divorce. Equitable distribution is the process of dividing property owned or acquired by either spouse when the marriage ends. During this process, the court distinguishes between separate property and marital property.
Separate property, which includes assets acquired before the marriage, typically remains with the original owner. On the other hand, marital property, which consists of assets and income acquired during the marriage, is divided equitably between both spouses. However, equitable distribution does not always mean a 50/50 split. The courts consider various factors, such as the length of the marriage, each spouse’s contributions, and the overall circumstances of the case, to determine a fair distribution.
How is property divided after a divorce?
In New York, all property acquired and income earned during a marriage are subject to equitable distribution, a process used to divide assets upon the dissolution of a marriage. During equitable distribution, the courts differentiate between separate property and marital property.
Separate property, which includes assets acquired before the marriage or through inheritance or gifts specifically to one spouse, typically remains with the original owner. Marital property, which consists of property and income acquired during the marriage, is divided equitably between the spouses, though not necessarily equally.
The court takes into account several factors when distributing property, such as the length of the marriage, the financial and non-financial contributions of each spouse, the needs and circumstances of both parties, and any other relevant factors that may impact a fair distribution. This ensures a tailored approach that reflects the unique circumstances of each case.
What is an order of protection?
An Order of Protection is a formal court order designed to protect one party (the Petitioner) from abuse, stalking, harassment, or violent behavior by the other party (the Respondent). If the Respondent violates the Order, the Petitioner can contact the police, and the Respondent may face legal consequences, including potential jail time.
In many divorce or family law cases, a Petitioner may request that the Respondent be served with an Order of Protection. While the court is reviewing petitions for matters such as custody, support, or visitation, a Temporary Order of Child Support or Custody may also be issued. This temporary order establishes custody and child support arrangements until a permanent agreement is reached.
There are various types of Orders of Protection with different terms and conditions, which can vary based on the circumstances of each case. Given the complexity and the potential legal implications, it is highly advisable to seek the guidance of an experienced attorney to navigate this process and ensure your rights are protected.
What do I need to bring to my consultation?
After scheduling your consultation with Shim Law Group, P.C., you will be asked to complete a short form, which will be provided either in person or via email. This form will gather basic details about your case and general information. You do not need to bring your spouse to the consultation, as the firm can only represent one party in the divorce. If you have already been served with a Summons, it is important to bring it with you to the consultation.
Although not required, it may be helpful to bring a pen and notepad to jot down key points discussed during the meeting.
What if I cannot afford a lawyer?
The court may be able to appoint a lawyer to represent you if you are unable to pay for one yourself. Alternatively, you may contact your local county bar to speak with one of their volunteer attorneys for assistance on your case.
Brooklyn Bar Association: 718-624-0675
Bronx County Bar Association: 718-293-5600
New York County Lawyers Association: 212-267-6646
Queens County Bar Association: 718-291-4500
Richmond County Bar Association: 718-442-4500
Suffolk County Bar Association: 631-234-5899
Nassau County Car Association: 516-747-4070
